Michael McNamara (Clare, Labour) | Oireachtas source

Like my colleagues, I commend certain aspects of this Bill. Unlike them, I do not look forward to its enactment because there is a real risk that it will not bring very much clarity to the law. This Bill is being introduced in Ireland in response to a recommendation of the Committee of Ministers of the Council of Europe on the criminal record and rehabilitation of convicted persons. That recommendation dates from 1984 so almost 30 years later this august Legislature finally gets around to addressing the matter. The recommendation advocates that provision be made for automatic rehabilitation after a reasonably short period of time.

As Deputy Connaughton pointed out, the purpose of this Bill is quite similar to the Rehabilitation of Offenders Act in the UK, which was passed in 1974, almost 39 years ago. One could ask what on earth people in this Legislature were doing in the mean time but that is a different question. A fine is rehabilitated in the UK after 12 months after the date of conviction, a custodial sentence of six months or less is rehabilitated after 24 months, a custodial sentence of six to 30 months is rehabilitated after 48 months after completion, a compensation order is rehabilitated on the date on which the payment is made and a community rehabilitation order is rehabilitated 12 months after the last day of the effect of the order. This Bill provides for a period of three to four years in respect of a fine or community service order and three years for a non-custodial sentence.

As pitifully late as it is, there must be a question as to whether or not it fulfils the requirement of providing for an automatic rehabilitation after a reasonably short period of time. The time periods provided in this Bill are an improvement on what went before which was nothing. It is not that difficult to improve on nothing but it is an improvement and should be welcomed. However, I wonder whether the drafters and framers of this Bill in the Department of Justice and Equality have taken account of recent case law in the UK. In MM v. The United Kingdom, which was heard in the European Court of Human Rights, the matter of respect for privacy and family rights relating to the recording of offences was considered in detail by the grand chamber. The judgment has handed down on 13 November 2012 and was considered by the Court of Appeal in the UK in the case of R. (T and others) v. Chief Constable of Greater Manchester Police and others. This judgment was handed down on 29 January 2013. T was born in 1991 and received two warnings from the Greater Manchester police force in connection with two stolen bicycles when he was 11. At the age of 21, he applied to do a university course in sport which would ultimately have led him to work with children. Therefore, the warning that he received in connection with two stolen bicycles was not spent because he would be dealing with children.

A similar provision is contained in our Bill. Section 9 of the Bill provides that section 5 shall not apply where a person applies for, seeks or is offered relevant work. One must look at the opacity of the Irish drafting because relevant work is further defined instead of just being defined in the section as one might expect because legislation should be understandable to the greatest number of people. Relevant work includes work with children so somebody in a similar situation to T who receives a warning in connection with stolen bicycles at the age of 11, for example, and subsequently goes to university to study sports science at the University of Limerick would not have the conviction spent when they then go to work as sports science teachers because they are dealing with children. The fact that T's conviction was not spent was found to be disproportionate and, therefore, contrary to the European Convention on Human Rights. I very much hope that on the day this Chamber passes legislation after a very long delay, it is not found to be contrary to the provisions of the European Convention on Human Rights to which this State is bound.

While I welcome the Bill for being an improvement on nothing, it could and should go much further in respect of the time periods in which particular convictions are spent, the requirement to divulge certain convictions and the fact that certain convictions should arguably be spent and not remain on the record in contravention of the European Convention on Human Rights.

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